GULAB SHANKAR TIWARI Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution is directed against the order dated 7-4-1980 passed by the Deputy Director of Consolidation, Allahabad, allowing the revision filed by opposite parties Nos. 3 and 4 Bal Govind and Tulsi Ram and setting aside the orders dated 14th December 1979 and 8th February 1980 passed by the Consolidation Officer and further directing that the Amaldaramad of the order dated 8-11-1979 passed by the Consolidation Officer under section 12 of the U. P. Consolidarion of Holdings Act be made in the names of opposite parties nos. 3 and 4 on the plots in dispute which they had purchased from Smt. Phulwasi, opposite party No. 5, through registered sale deed dated 3rd October 1979.

(2.) THE petitioner Gulab Shanker Tewari filed an application before the Consolidation Officer for setting aside of the aforesaid order of mutation dated 8th November 1979 with the allegations that he is in possession over the land in question on the basis of loan advanced by him to Smt. Phulwasi on 24th December 1969. He thus became Bhumidhar of the land under section 164 of the UP ZA and LR Act. It was further pleaded that Smt. Phulwasi had not executed any sale deed in favour of opposite parties Nos. 3 and 4 and they had on the basis of fictitious and forged sale deed got the mutation order in their favour by practising fraud upon the court. It was further pleaded that since Smt. Phulwasi was left with no interest in the land in dispute and the objector-petitioner was in possession over it and as such she could not transfer it to opposite parties Nos. 3 and 4 and the mutation order passed in their favour be set aside. On this application the Consolidation Officer passed an order on 14th December 1979 directing notices to be issued to opposite parties nos. 3 and 4 on the ground that Gulab Shankar had no locus standi to apply for setting aside the mutation order passed in their favour, which was not obtained by playing fraud upon court. It was further asserted that Smt. Phulwasi had executed a valid sale deed in their favour and their names deserved to be mutated on the land in question and the aforesaid order setting aside Amaldaramad of mutation order in their favour be recalled and the application filed by the petitioner for setting aside the said mutation order be rejected being not maintainable.

(3.) ANNEXURE 1 to the rejoinder affidavit filed by the petitioner appears to be an agreement for sale said to have been executed by Smt. Phulwasi on 24th October 1976 in favour of the petitioner. The said document is not a mortgage deed nor it can be construed as such. It is also not registered. There is a recital in the said document that for a sum of Rs. 35, 000/- Smt. Phulwasi had contracted to sell it to the petitioner Gulab Shanker and a sum of Rs, 15, 000/- was paid as earnest money and that Gulab Shanker was put into possession over the land in dispute. It is also mentioned in the said document that the sale deed is to be executed within a period of three years in favour of Gulab Shanker. This document therefore purports to be an agreement for sale and not a possessory mortgage. The provisions of section 164 of the UP ZA and LR Act are, therefore, not attracted and the petitioner cannot claim to have acquired Bhumidhari rights on the basis of the said document. The genuineness of the said document is challenged and it has also not been proved. In this view of the matter the petitioner cannot urge on its basis to have acquired Bhumidhari rights in the land in dispute. It is now well settled that no rights accrue in the property on the basis of agreement for sale. Bhumidhari rights will accrue in the land only upon the execution of the sale deed and not on the basis of an agreement for sale although possession might have been delivered to the person in whose favour the agreement for sale was executed. The agreement for sale will be enforced on being established that it was a genuine document and that the party had contracted to sell the property in question. Since this question is not involved in the present case I do not express any opinion about the validity or the genuineness of the alleged agreement for sale.